Is it fair to dismiss if they have not faced criminal charges?
Colleges and schools can face a huge dilemma when grappling with cases of teachers being suspected of possession of indecent images of children. Criminal investigations can take months, if not years, during which time an employer will have to take a view on whether they can continue to employ the member of staff: dismissal of a teacher who is eventually exonerated may be a huge injustice, but balance this with the potential risk posed to learners by continuing to employ someone who is suspected.
In a welcome decision for schools and colleges who must prioritise the safety of children and vulnerable adults, the recent Scottish Court of Session in Scotland (the equivalent to the English and Welsh Court of Appeal) of L v K has held that it was fair to dismiss a teacher, even though criminal proceedings had not been brought.
The case concerned a teacher who was charged by police, along with this son, with possession of a computer containing indecent images of children. The teacher informed the head teacher of the school where he was employed and the school informed the local education authority, which was the teacher’s employer.
During the disciplinary process, the teacher confirmed that he did not know how the images came to be on the computer and that his son, and is son’s friends, had access to it.
The employer concluded that it could not confirm one way, or the other, whether the teacher had downloaded the images. This did give risk to safeguarding concerns and a formal risk assessment concluded the teacher posed an unacceptable risk to children. Understandably the school was concerned that there was also reputational risk.
The teacher was dismissed and he brought a claim for unfair dismissal before an employment tribunal.
The employment tribunal hearing the case concluded that it had been fair to dismiss the teacher and that the employer’s reasons for doing so met the test for amounting to “some other substantial reason”, a potentially fair reason to dismiss.
The tribunal also concluded that the decision to dismiss fell within the band of reasonable responses that an employer could have taken in the circumstances.
The teacher appealed against the tribunal decision and Employment Appeal Tribunal (EAT) came to the opposite conclusion. It found that the actual reason for dismissal was misconduct. The employer would need to have a reasonable belief in the teacher’s guilt, i.e. the evidence indicated that on the balance of probabilities he was responsible for downloading the images. Given that the evidence was inconclusive, the alleged misconduct should not have been taken into account when dismissing him.
However, the local authority appealed against the EAT decision and the Court of Session unanimously found that the employment tribunal’s decision had been correct, that the EAT had wrongly interfered with that decision and had erred in categorising the reason for dismissal.
The correct reason for dismissal was ‘some other substantial reason’ as the employer had decided that it could no longer place the necessary trust and confidence in the teacher: there was a real possibility that he was an offender. In other words, the reason had been genuine and substantial.
This did not require a reasonable belief in the teacher’s guilt.
Instead, the next part of the fair dismissal test could be applied, i.e. was it within the band of reasonable responses for the employer to have dismissed the teacher in the circumstances?
Key factors supporting a finding that the employer’s response was reasonable in this case:
- The teacher had been charged with an offence and the right to prosecute had been reserved.
- The teacher had accepted his computer contained the images and he could not prove he was not involved with the images.
- The employer factored into its decision-making its statutory obligations to protect children due to the nature of its business.
- Although reputational risk was a concern, it was not the main reason for dismissal.
The Court also referred to a similar case which concluded that it was fair to have dismissed an employee for a substantial reason, despite having been acquitted of charges of child abuse and despite this carrying a risk of serious injustice to the employee.
The Court reminded the tribunals that the fact they might have taken a different view of the evidence resulting in a different decision to the employer, was irrelevant.
This case reminds us that employers are not held to the same evidential standards as criminal prosecutors in their investigations. Even where police have acquitted an individual, employers are not bound to do the same. Where an employer has assessed the evidence and cannot conclude that an employee is innocent of an allegation which seriously undermines the relationship of trust and confidence between them, it may be fair to dismiss an employee for some other substantial reason. This is the case especially where a decision to leave the employee in their role would place vulnerable adults and children at risk.